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The Jesuits and the drafting of the Irish constitution of 1937

Published online by Cambridge University Press:  28 July 2016

Seán Faughnan
Seán Faughnan*
Affiliation:
Department of Modern History, University College, Dublin
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Extract

In July 1987, the private papers of Éamon de Valera relating to the drafting of the Irish constitution of 1937 were opened to the public for the first time. The purpose of this paper is to examine, in the light of this material, which is held in the Francisan House of Studies, Killiney, County Dublin, and of documents now available in the Irish Jesuit Archives, the contribution of a number of Jesuit priests to the drafting of this constitution.

On 24 May 1934, Éamon de Valera, president of the executive council, set up a committee of four civil servants to examine the Irish Free State constitution of 1922. Its membership consisted of Stephen Roche, secretary of the department of justice (committee chairman), Michael McDunphy, assistant secretary of the department of the president (committee secretary), Philip O’Donoghue, assistant to the attorney general, and John Hearne, legal adviser in the department of external affairs who, with de Valera, was to prove to be the principal architect of the 1937 constitution. It is clear from the minutes of this committee that its members were initially under the impression that what de Valera was seeking was a wholly new constitution. Thus, at its second meeting it was ‘agreed that the report of the committee should take the form of an entirely new constitution’. It soon became clear, however, ‘as a result of pronouncements by the president and of conversations which individual members of the committee had with him’, that what he really wanted was not a new constitution but ‘a selection within the framework of the present constitution of those articles which should be regarded as fundamental’ and ‘a recommendation as to how these should be rendered immune from alteration by ordinary legislation’.

Type
Research Article
Information
Irish Historical Studies , Volume 26 , Issue 101 , May 1988 , pp. 79 - 102
Copyright
Copyright © Irish Historical Studies Publications Ltd 1988

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References

1 Irish Jesuit Archives, 35 Lower Leeson Street, Dublin 2. These documents include the minutes of a committee of Jesuits which drafted a number of articles sent on to de Valera. In addition, the private papers of these individuals, also in the Jesuit archives, have proved valuable.

2 Minutes, 29 May 1934 (State Paper Office, Department of the Taoiseach files, S2979).

3 McDunphy note, 31 May 1934 (S.P.O., S2979).

4 ‘Preliminary draft heads’, 17 May 1935 (Franciscan House of Studies, Killiney, Co. Dublin, De Valera papers, 1029/6). Hereafter ‘draft heads.’

5 Hearne explanatory memorandum, 17 May 1935 (ibid.).

6 Memorandum by Pádraig Ó Cinnéide, assistant secretary, Department of the Taoiseach, 30 Dec. 1937 (S.P.O., S9715A). Maurice Moynihan was appointed secretary to the government on 1 March 1937. Sean Moynihan was transferred to the Department of Finance, where he held the post of assistant secretary.

7 De Valera papers, 1095/2A. Hereafter referred to as ‘Suggestions’.

8 Constitution of An Ríoghacht, as adopted by its árd-fheis on 28 November 1926 (Irish Jesuit Archives, Cahill papers).

9 Constitution of An Ríoghacht (ibid.).

10 Waldron, J., ‘An Ríoghacht’ in Irish Monthly, lxxviii (1950), p. 278 Google Scholar.

11 Obituary of Fr Cahill in Irish Provincial News, iv, no. 4 (Oct. 1941), p. 278.

12 Cahill to de Valera, 22 Mar. 1932 (De Valera papers, 1095/1).

13 Cahill to de Valera, 7 July 1934 (ibid.).

14 Cahill to de Valera, 4 Sept. 1936 (ibid.). Cahill sent de Valera two letters on this date.

15 Introduction to the ‘Suggestions’, 4 Sept. 1936 (De Valera papers, 1095/2A).

16 Cahill to de Valera, 4 Sept. 1936 (ibid., 1095/2A).

17 De Valera to Cahill, 19 Sept. 1936 (ibid., 1095/1)

18 Cahill to de Valera, 21 Sept. 1936 (ibid.).

19 Ibid., 1095/2A.

20 Maurice Moynihan to author, 19 Aug. 1987. Fr Cahill was held in high esteem by Moynihan.

21 Keogh, Dermot, The Vatican, the bishops and Irish politics, 1919–1939 (Cambridge, 1986), p. 208 Google Scholar. The final chapter of this book contains some interesting material relating to the drafting of the constitution. DrKeogh, has, in addition, provided a useful analysis of certain aspects of the drafting of the constitution in ‘The constitutional revolution’ in Administration, xxxv (1988), pp 4–84 Google Scholar.

22 Interview with Rev. Fergal McGrath, S.J., 3 June 1987.

23 For a summary of the contents of the four papers and of the reactions to them, see Clongownian, xiv, no. 3 (June 1937), pp 9–12.

24 Draft of a radio broadcast given by Fr Edward Coyne on the ‘The Social Order Summer School’, 25 July 1937 (Irish Jesuit Archives, Coyne papers).

25 Interview with Fr McGrath, 3 June 1987.

26 Maurice Moynihan was also present, but he has assured the author that he was not in attendance in an official capacity.

27 Earl of Longford and Thomas P. O’ Neill, Eamon de Valera (Dublin, 1970), p. 295.

28 Interview with Fr McGrath, 3 June 1987.

29 Draft radio broadcast (Coyne papers). He was later instructed by the provincial not to use this section in the broadcast.

30 Kiernan to Canili, 16 Oct. 1936 (Cahill papers).

31 Interview with Fr McGrath, 3 June 1987.

32 Obituary in Irish Provincial News, vi, no. 3 (July 1950), p. 58.

33 Obituary in ibid., vi, no. 2 (Apr. 1950), p. 40.

34 Clongownian, xiv, no. 3 (June 1937), p. 12.

35 Coyne, Edward J., ‘Oliveira Salazar and the Portuguese corporate constitution’ in Irish Monthly, lxiv (1936), p. 82 Google Scholar. See also ‘The new Austrian constitution’ in ibid., lxii (1934), pp 423–7.

36 Minutes, session 1, 24 Sept. 1936 (Irish Jesuit Archives, Bartley papers).

37 Ibid., session 5, 18 Oct. 1936 (Bartley papers). This was done by Cahill, possibly with the assistance of Bartley. The document was typed by Cahill.

38 The committee’s draft was entitled ‘Suggestions for a catholic constitution’ (De Valera papers, 1095/2B). It is hereafter referred to as the ‘Joint submission’.

39 Minutes, session 4, 15 Oct. 1936 (Bartley papers).

40 Cahill papers.

41 Bartley to Kiernan, 11 Oct. 1936 (Bartley papers).

42 Bartley to Kiernan, 15 Oct. 1936 (ibid.).

43 Kiernan to Cahill, 16 Oct. 1936 (Cahill papers).

44 Cahill to de Valera, 21 Oct. 1936 (De Valera papers, 1095/2B).

45 Longford & O’Neill, Eamon de Valera, p. 296.

46 Minutes, session 2, 1 Oct. 1936 (Bartley papers).

47 Farragher, Sean P., Dev and his alma mater (Dublin, 1984), p. 173 Google Scholar. John Charles McQuaid, a Holy Ghost father, was president of Blackrock College and afterwards archbishop of Dublin.

48 Minutes, session 2, 1 Oct. 1936 (Bartley papers).

49 ‘Joint submission’, 21 Oct. 1936 (De Valera papers, 1095/2B).

50 It had been decided at the last session of the committee that ‘will’ should be substituted for ‘may’. It is clear that Bartley changed this back to ‘may.’ It is not known why this was done or whether he did it on his own initiative.

51 ‘Joint submission’, 21 Oct. 1936 (De Valera papers, 1095/2B)

52 Bartley to Kiernan, 11 Oct. 1936 (Bartley papers).

53 ’Summary of the main provision of the constitution’, 5 Nov. 1936 (De Valera papers, 1050/2).

54 Untitled, 14 Oct. 1936 (ibid., 1976/1 A).

55 Longford & O’ Neill, De Valera, p. 296.

56 Cahill to de Valera, 21 Oct. 1936 (De Valera papers, 1095/2B).

57 ’Suggestions (supplementary) regarding the new constitution of the Irish state’ (ibid. 1095/2C).

58 Cahill to de Valera, 13 Nov. 1936 (ibid.).

59 Bartley commentary, undated (Cahill papers).

60 Cahill to de Valera, 13 Nov. 1936 (De Valera papers, 1095/2C).

61 Bartley commentary, undated (Cahill papers).

62 Cahill to de Valera, 13 Nov. 1936 (De Valera papers, 1095/2C).

63 Ibid.

64 hartley commentary, undated (Cahill papers).

65 The handwriting of the censor appears to be that of Fr Bartley.

66 Cahill papers.

67 Cahill alternative articles, undated (Cahill papers).

68 Dermot Keogh’s assertion that the censorship was undertaken by Canavan ( Keogh, , The Vatican & Irish politics, 1919–39, p. 209 Google Scholar) is incorrect.

69 Cahill alternative articles, undated (Cahill papers).

70 Coyne commentary, undated (Cahill papers).

71 Cahill alternative articles (Cahill papers). All the material in the round brackets belongs to Coyne.

72 Keogh, The Vatican, & Irish politics, p. 209. The article on religion in the published constitution referred to the ‘special position’ of the catholic church. See below, p. 101 In a recent assessment, Dr Keogh has speculated that the article which I have identified as Cahill’s may have been an earlier draft of the religious article in the ‘Joint submission’ (Dermot Keogh, ‘The constitutional revolution’, p. 79, n. 24). However, rough notes made by Cahill, both whilst the Jesuit committee was functioning and after it had ceased to exist, indicate that it was drafted by him (Cahill papers).

73 De Valera to Donal Barrington, 18 Oct. 1955 (De Valera papers, 1089/2). Barrington, a lawyer, had suggested in a radio programme that the article on religion was possibly based on the text of the 1801 concordat between Napoleon Bonaparte and Pius VII.

74 Cahill to de Valera, 8 May 1937 (S.P.O., S9902).

75 Moynihan to Cahill, 25 May 1937 (ibid.).

76 Cahill to de Valera, 13 May 1937 (ibid., S9856).

77 Cahill papers.

78 McCaffrey (president) and Maloney (secretary) to de Valera, 27 May 1937 (S.P.O., S9856).

79 Cahill to de Valera, 23 May 1937 (De Valera papers, 1095/2D).

80 In a rough draft of this letter in his papers, he wrote of the judges, lawyers and public men being ‘dominated’ by the principles of English jurisprudence.

81 Cahill to de Valera, 13 May 1937 (De Valera papers, 1095/2D). De Valera had, in fact, considered such a proposition when drafting the constitution. See Dáil Éireann deb., lxvii, 427 (13 May 1937).

82 This article was entitled the ‘Directive principles of social policy’. Essentially, it consisted of a number of general statements which were intended to guide the state in its social policy.

83 This suggestion was also made by An Ríoghacht. See McCaffrey and Moloney to de Valera, 23 May 1937 (S.P.O., S9856).

84 Cahill to de Valera, 13 May 1937 (De Valera papers, 1095/2D).

85 ‘The state and the family’, undated (Coyne papers). This document appears to be the text of a talk which he delivered to the Women’s Social and Progressive League in January 1938. The general topic for discussion was, ‘Does the state protect the home?’.

86 Undated (Canavan papers).

87 O’Brien to de Valera, 19 May 1937 (S.P.O., S9856).

88 Hurley to de Valera, 24 May 1937 (ibid.).

89 Adams, Michael, Censorship: the Irish experience (Dublin, 1968), p. 201 Google Scholar.

90 Devane to de Valera, 29 May 1937 (S.P.O., S9856).

91 For the wording of this article, see below, p. 101.

92 Cahill to de Valera, 23 May 1937 (De Valera papers, 1095/2D).

93 Gannon to de Valera, 7 June 1937 (S.P.O., S9903).

94 Keogh, The Vatican & Irish politics, p. 213.

95 Ibid., p. 279.

96 Moynihan to Gannon, 25 June 1937 (S.P.O., S9903).

97 De Valera to Cahill, 24 May 1937 (Cahill papers).

98 De Valera to Cahill, 19 Sept. 1936 (De Valera papers, 1095/1).

99 Untitled (ibid., 1976/IB).

100 ’Religion: church and state,’ undated (ibid., 1979/3).

101 De Valera’s account of his ‘negotiations with the churches’, undated (ibid., 1034).

102 McQuaid to de Valera, 15 Apr. 1937 (ibid., 1091).

103 McQuaid to de Valera, 15 Apr. 1937 (ibid.).

104 See above, p. 94.

105 ‘Revised pro memoria’, 16 Apr. 1937 (De Valera papers, 1995/2G).

106 Walshe report, 22 Apr. 1937 (ibid., 1995/2D).

107 Dermot Keogh, ‘The constitutional revolution’, pp 41–3.

108 Ibid., p. 43.

109 McQuaid to de Valera, undated (De Valera papers, 1091).

110 Undated (ibid., 1085/1).

111 An earlier version of this paper was delivered to the Irish Historical Society on 10 November 1987. My thanks are due to Professor Ronan Fanning, Dr Maurice Moynihan, Lynn Hartel and Michael McLoughlin who read and commented upon earlier drafts. I am also indebted to Mr Breandán Mac Giolla Choille, archivist of the De Valera papers, and his wife Betty. I am specially indebted to the late Fr Fergal McGrath, archivist of the Society of Jesus in Ireland. Fr McGrath, at my request, located the minutes of the Jesuit committee and additional material relating to its work. Future researchers will greatly miss his generosity and unfailing courtesy.